The Myth Behind "Separation of Church and State"

Liberty Counsel ^ | 2000 | Mathew D. Staver

[Tailgunner Joe]

This country was established upon the assumption that religion was essential to good government. On July 13, 1787, the Continental Congress enacted the Northwest Ordinance, which stated: "Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged." (1) The First Amendment prohibited the federal government from establishing a religion to which the several states must pay homage. The First Amendment provided assurance that the federal government would not meddle in the affairs of religion within the sovereign states.

In modern times groups like the American Civil Liberties Union and Americans United for Separation of Church and State have attempted to create an environment wherein government and religion are adversaries. Their favorite phrase has been "separation of church and state." These groups have intoned the mantra of "separation of church and state" so long that many people believe the phrase is in the Constitution. In Proverbs Chapter 18, verse 16, the Bible says, "He who states his case first seems right until another comes to challenge him." I'm sure you have seen legal arguments on television where the prosecution argues to the jury that the defendant is guilty. Once the prosecution finishes the opening presentation, you believe that the defendant is guilty. However, after the defense attorney completes the rebuttal presentation of the evidence, you may be confused, or at least you acknowledge that the case is not clear cut.

The same is true with the phrase "separation of church and state." The ACLU and the liberal media have touted the phrase so many times that most people believe the phrase is in the Constitution. Nowhere is "separation of church and state" referenced in the Constitution. This phrase was in the former Soviet Union's Constitution, but it has never been part of the United States Constitution.

Justice Oliver Wendell Holmes once said, "It is one of the misfortunes of the law that ideas become encysted in phrases, and thereafter for a long time cease to provoke further analysis." (2) The phrase, "separation of church and state," has become one of these misfortunes of law.

In 1947 the Supreme Court popularized Thomas Jefferson's "wall of separation between church and state." (3) Taking the Jefferson metaphor out of context, strict separationists have often used the phrase to silence Christians and to limit any Christian influence from affecting the political system. To understand Jefferson's "wall of separation," we should return to the original context in which it was written. Jefferson himself once wrote:

On every question of construction, [we must] carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the test, or invented against it, conform to the probable one in which it was a part. (4)

Thomas Jefferson was inaugurated as the third President on March 4, 1801. On October 7, 1801, a committee of the Danbury Baptist Association wrote a congratulatory letter to Jefferson on his election as President. Organized in 1790, the Danbury Baptist Association was an alliance of churches in Western Connecticut. The Baptists were a religious minority in the state of Connecticut where Congregationalism was the established church. (5)

The concern of the Danbury Baptist Association is understandable once we understand the background of church-state relations in Great Britain. The Association eschewed the kind of state sponsored enforcement of religion that had been the norm in Great Britain.

The Danbury Baptist Association committee wrote to the President stating that, "Religion is at all times and places a Matter between God and Individuals -- that no man ought to suffer in Name, person or affects on account of his religious Opinions." (6) The Danbury Baptists believed that religion was an unalienable right and they hoped that Jefferson would raise the consciousness of the people to recognize religious freedom as unalienable. However, the Danbury Baptists acknowledged that the President of the United States was not a "national Legislator" and they also understood that the "national government cannot destroy the Laws of each State." (7) In other words, they recognized Jefferson's limited influence as the federal executive on the individual states.

Jefferson did not necessarily like receiving mail as President, but he generally endeavored to turn his responses into an opportunity to sow what he called "useful truths" and principles among the people so that the ideas might take political root. He therefore took this opportunity to explain why he as President, contrary to his predecessors, did not proclaim national days of fasting and prayer.

Jefferson's letter went through at least two drafts. Part of the first draft reads as follows:

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof; thus building a wall of separation between church and state. Congress thus inhibited from acts respecting religion, and the Executive authorized only to execute their acts, I have refrained from prescribing even occasional performances of devotion... (8)

Jefferson asked Levi Lincoln, the Attorney General, and Gideon Granger, the Postmaster General, to comment on his draft. In a letter to Mr. Lincoln, Jefferson stated he wanted to take the occasion to explain why he did not "proclaim national fastings & thanksgivings, as my predecessors did." (9) He knew that the response would "give great offense to the New England clergy" and he advised Lincoln that he should suggest necessary changes. (10)

Mr. Lincoln responded that the five New England states have always been in the habit of "observing fasts and thanksgivings in performance of proclamations from the respective Executives" and that this "custom is venerable being handed down from our ancestors." (11) Lincoln therefore struck through the last sentence of the above quoted letter about Jefferson refraining from prescribing even occasional performances of devotion. Jefferson penned a note in the margin that this paragraph was omitted because "it might give uneasiness to some of our republican friends in the eastern states where the proclamation of thanksgivings" by their state executives is respected. (12)

To understand Jefferson's use of the wall metaphor in his letter to the Danbury Baptist Association, we must compare his other writings. On March 4, 1805, in Jefferson's Second Inaugural Address, he stated as follows:

In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the General [i.e., federal] Government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it; but have left them, as the Constitution found them, under the direction and discipline of State or Church authorities acknowledged by the several religious societies. (13)

Then on January 23, 1808, Jefferson wrote in response to a letter received by Reverend Samuel Miller, who requested him to declare a national day of thanksgiving and prayer:

I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provisions that no law shall be made respecting the establishment or free exercise of religion [First Amendment], but from that also which reserves to the States the powers not delegated to the United States [Tenth Amendment]. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General [i.e., federal] Government. It must then rest with the States, as far as it can be in any human authority. (14)

I am aware that the practice of my predecessors may be quoted. But I have every belief, that the example of State executives led to the assumption of that authority by the General Government, without due examination, which would have discovered that what might be a right in State government, was a violation of that right when assumed by another.... [C]ivil powers alone have been given to the President of the United States, and no authority to direct the religious exercises of his constituents. (15)

Comparing these two responses to his actions in the state government of Virginia show the true intent of Jefferson's wall metaphor. As a member of the House of Burgesses, on May 24, 1774, Jefferson participated in drafting and enacting a resolution designating a "Day of Fasting, Humiliation, and Prayer." (16) This resolution occurred only a few days before he wrote "A Bill for Establishing Religious Freedom." In 1779, while Jefferson was governor of Virginia, he issued a proclamation decreeing a day "of publick and solemn thanksgiving and prayer to Almighty God." In the late 1770's, as chair of the Virginia committee of Revisers, Jefferson was the chief architect of a measure entitled, "A Bill for Appointing Days of Public Fasting and Thanksgiving." Interestingly, this bill authorized the governor, or Chief Magistrate with the advice of Counsel, to designate days of thanksgiving and fasting and, required that the public be notified by proclamation. The bill also provided that "[e]very minister of the gospel shall on each day so to be appointed, attend and perform divine service and preach a sermon, or discourse, suited to the occasion, in his church, on pain of forfeiting fifty pounds for every failure, not having a reasonable excuse." (17) Though the bill was never enacted, Jefferson was its chief architect and the sponsor was none other than James Madison.

So what did Jefferson mean when he used the "wall" metaphor? Jefferson undoubtedly meant that the First Amendment prohibited the federal Congress from enacting any law respecting an establishment of religion or prohibiting the free exercise thereof. As the chief executive of the federal government, the President's duty was to carry out the directives of Congress. If Congress had no authority in matters of religion, then neither did the President. Religion was clearly within the jurisdiction of the church and states. As a state legislator, Jefferson saw no problem with proclaiming days of thanksgiving and prayer, and even on one occasion prescribed a penalty to the clergy for failure to abide by these state proclamations. Jefferson believed that the Constitution created a limited government and that the states retained the authority over matters of religion not only through the First Amendment but also through the Tenth Amendment. (18) The federal government had absolutely no jurisdiction over religion, as that matter was left where the Constitution found it, namely with the individual churches and the several states.

In summary, the First Amendment says more about federalism than religious freedom. In other words, the purpose of the First Amendment was to declare that the federal government had absolutely no jurisdiction in matters of religion. It could neither establish a religion, nor prohibit the free exercise of religion. The First Amendment clearly erected a barrier between the federal government and religion on a state level. If a state chose to have no religion, or to have an established religion, the federal government had no jurisdiction one way or the other. This is what Thomas Jefferson meant by the "wall of separation." In context, the word "state" really referred to the federal government. The First Amendment did not apply to the states. It was only applicable as a restraint against the federal government. The problem arose in 1940 (19) and then again in 1947 (20) when the Supreme Court applied the First Amendment to the states. This turned the First Amendment on its head, and completely inverted its meaning. (21) The First Amendment was never meant to be a restraint on state government. It was only applicable to the federal government. When the Supreme Court turned the First Amendment around 180 degrees and used Jefferson's comment in the process, it not only perverted the First Amendment, but misconstrued the intent of Jefferson's letter.

There is nothing wrong with the way Jefferson used the "wall of separation between church and state" metaphor. The problem has arisen when the Supreme Court in 1947 erroneously picked up the metaphor and attempted to construct a constitutional principal. While the metaphor understood in its proper context is useful, we might do well to heed the words of the United States Supreme Court Justice William Rehnquist:

The "wall of separation between church and State" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. (22)

Jefferson used the phrase "wall of separation between church and state" as a means of expressing his republican view that the federal or general government should not interfere with religious matters among the several states. In its proper context, the phrase represents a clear expression of state autonomy.

Accordingly, Jefferson saw no contradiction in authoring a religious proclamation to be used by state officials and refusing to issue similar religious proclamations as president of the United States. His wall had less to do with the separation of church and all civil government than with the separation of federal and state governments. (23)

The "wall of separation between church and state" phrase as understood by Jefferson was never meant to exclude people of faith from influencing and shaping government. Jefferson would be shocked to learn that his letter has been used as a weapon against religion. He would never countenance such shabby and distorted use of history.

INDEX

1.Ord. or 1789, July 13, 1787, Art. A III, reprinted in Documents Illustrative of the Formation of the Union of American States 52 (1927). 2. Hyde v. United States, 225 U.S. 347, 384 (1912) (Holmes, J., dissenting).

3. See Everson v. Bd. of Educ., 330 U.S. 1 (1947). See also McCollum v. Bd. of Educ., 333 U.S. 203, 211 (1948).

4. Thomas Jefferson to Messers. Nehemiah Dodge, Ephraim Robbins and Stephen S. Nelson, a Committee of the Danbury Baptist Association in the State of Connecticut, January 1, 1802, Presidential Papers Microfilm, Thomas Jefferson Papers, Manuscript Division, Library of Congress, Ser. I, reel 25, November. 15, 1801 - March 31, 1802; Jefferson to William Johnson, June 12, 1823, Presidential Papers Microfilm, Thomas Jefferson Papers, Manuscript Division, Library of Congress, Ser. I, reel 70. The letters referenced below can be found at this citation.

5. Daniel Dreisbach, "Sowing Useful Truths and Principles": The Danbury Baptists, Thomas Jefferson, and the "Wall of Separation," 39 Journal of Church and State 455, 459 (1997).

6. Id. at 460.

7. Id.

8. Id. at 462.

9. Id. at 463 n. 16.

10. Id. at 465.

11. Id. at 466.

12. Id. at 462 n. 13.

13. Thomas Jefferson to the Reverend Samuel Miller, January 23, 1808, in Andrew A. Lipscomb et al., eds., The Writings of Thomas Jefferson 11:428; Jefferson, Second Inaugural Address, March 4, 1805, n Andrew A. Lipscomb et al., eds., The Writings of Thomas Jefferson 3:378.

14. Thomas Jefferson to the Reverend Samuel Miller, January 23, 1808, in The Writings of Thomas Jefferson 11:428..

15. Id. at 11:430.

16. J. Body, ed., The Papers of Jefferson 1:105.

17. Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI (Richmond, Va., 1984) 59-60; Julian P. Boyd, et al., eds., The Papers of Thomas Jefferson 2:556.

18. In the Kentucky-Virginia Resolutions of 1798, Jefferson wrote that the powers not delegated to the United States are reserved to the States and that "no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States, or to the people. . . [and are] withheld from the cognizance of federal tribunals." The Kentucky-Virginia Resolutions and Mr. Madison's Report of 1799 2-3.

19. See Cantwell v. Connecticut, 310 U.S. 296 (1940).

20. See Everson, 330 U.S. at 1.

21. One of the early Supreme Court Justices, Joseph Story, wrote that "the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions. . ." J. Story, Commentaries on the Constitution § 1879 (1833).

22. Wallace v. Jaffree, 472 U.S. 38, 106 (Rehnquist, J., dissenting).

23. Daniel Dreisbach, Thomas Jefferson and the Danbury Baptists Revisited, 56:4 William and Mary Quarterly 805, 812 (1999).

[Tailgunner Joe]

The phrase "separation of church and state" isn't in the US constitution, but it is in the Soviet Union's Constitution. Too bad for you the USSR is no more. You can still move to France though if you prefer official godlessness.

[DJ MacWoW]

Just to clarify, Yale Law school has it wrong but you have it correct?

[DJ MacWoW]

Read the official records for yourself.

The official treaty is in arabic (which is what the problem is). I don't read arabic. And I think I'll take Yale Law Schools word over yours. (Yale being such a bastion of conservatism)

And just to clarify further, the Treaty of Tripoli isn't the Constitution nor does it equal it.

[DocRock]

Double Standards

[DJ MacWoW]

Yikes!

My policy is to never believe what anyone says (especially if it supports your view)

Then the whole point is arguement and not debate.

[DocRock]

"Then the whole point is arguement and not debate."

Which is obvious when considering Frank dug up this article from 11/04 which was last bumped on 12/05. Something smells like ozone.

[DJ MacWoW]

Which is obvious when considering Frank dug up this article from 11/04 which was last bumped on 12/05. Something smells like ozone.

Yup. I had checked him out a few days ago and noticed the threads he posts on.

User Posts

[DocRock]

That is how I found out he was digging up a thread almost 2 years old. ; )

[DJ MacWoW]

You've been watching too. :)

I don't mind agendas but this is a grassroots website for conservatives. Sounds like Frank joined just to argue and not debate. He certainly doesn't sound conservative. Quite the opposite.

[DocRock]

I appreciate your post post number 32. I have direct ancectors that were born in the late 1500's that were buried in Jamestown which left England to live in a truly free Christian nation. The first sentence of the Mayflower Compact clearly states that the colonies were set up for the Advancement of the Christian Faith.

I used to point out that the first act of Congress on Sept. 11, 1777 approved the import of 20,000 copies of the Holy Bible, in response to the shortage caused by the Revolutionary War.

"The use of the Bible is so universal and its importance so great that your committee refers the above to the consideration of Congress, and if Congress shall not think it expedient to order the importation of types and paper, the Committee recommends that Congress will order the Committee of Commerce to import 20,000 Bibles from Holland, Scotland, or elsewhere, into the different parts of the States of the Union. Whereupon it was resolved accordingly to direct said Committee of Commerce to import 20,000 copies of the Bible." Link

Our Founding Fathers opened the first Congress in prayer and the first Congress approved importing or printing 20,000 Bibles and now, revisionist and activist judges tell us we cannot let children pray in school or read Bible stories. What a shame. Our first law regarding public education in this country was written to teach our children to read the Bible. It was called Ye Ol Deluder - Satan Law.

I am from Muhlenberg County Kentucky, which is named after Gen. Peter Muhlenberg, seen here in this statue inside the U.S. Capitol!

Peter Muhlenberg Statue
U.S. Capitol

"In January of 1776, Muhlenberg sent word for his congregation to gather for his farewell sermon. Ascending his familiar pulpit, he preached from Ecclesiastes 3:1-8. The sermon glowed throughout with devoted patriotism as the man of God told his people of his own resolve to fight and, if need be, to die for his country. He closed his message with these words: "In the language of holy writ, there is a time for all things, a time to preach and a time to pray, but the time for me to preach has passed away." Then in a voice that re-echoed through the church like a trumpet blast, he exclaimed, "And there is also a time to fight, and that time has now come." After pronouncing the benediction, Muhlenberg threw off his clerical gown and stood before his people in full military uniform. Stepping down the aisle, he ordered the drums at the door to beat for new recruits. The whole village gathered at the church to learn what strange event had turned a quiet church meeting into a scene of bustle and excitement."

---

Christians should be interested in winning souls for Christ but also preserving our heritage and the political environment that many of our forefathers fought and died for so that our religious institutions could flourish.

[DJ MacWoW]

Some of my family came in 1738 on the St Andrew. I found 2 of their wills online. They talked about Jesus in their wills. It was beautiful to find a generational belief! They fought in the Revolution and a "cousin" was killed by Indians. I resent people who spit on their sacrifice and faith that built this country.

[DocRock]

*smile*

[RobbyS]

What makes you think they respect the "original intent" of Jefferson any more than they respect that of the other Founding Fathers? Intellectually they are French secularists, who would like our national law regarding matters of religion to be like that of France.